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A protester holds a sign up during an anti-death penalty protest on June 18,2001 in Santa Ana, CA. (Photo by David McNew/Getty Images)

As the death penalty declines across the US, a small number of states are taking drastic measures to keep their death chambers active.

In light of last year’s three gruesomely botched executions, Ohio and Oklahoma (responsible for two of them) are taking the precaution of putting executions on hold. But that’s a little too cautious for Utah and Virginia, two states that appear willing to do just about anything to continue executions.

A challenge to Georgia’s “Lethal Injection Secrecy Act“ has led the Fulton County Superior Court in Atlanta to extend Warren Hill’s stay of execution. An appeal from the state of Georgia won’t be filed in time and his execution warrant will expire.

The secrecy law, which went into effect July 1, allows the state to withhold from the courts information about the drugs they intend to use in executions. This, of course, makes it impossible for the courts to determine if said drugs will be effective enough to prevent excessive pain and suffering that would render the execution a “cruel and unusual punishment” in violation of the constitution.

There is also a “separation of powers” question: can the executive and legislative branches of government set up a system that keeps the judicial branch in the dark about the most awesome and extreme power the state can wield? In other words, is it OK that the public and the courts are denied information they need to ensure that the law is upheld and that human rights and constitutional rights are protected?

Warren Hill – an African American man with an IQ of 70 who was convicted of murder in 1991 – was set to be executed at 7 p.m. tonight. He has been found intellectually disabled by all the doctors and experts who have examined him. The carrying out of his execution would directly contradict the 2002 U.S. Supreme Court decision in Atkins v. Virginia, in which the Court found the execution of the “mentally retarded” to be ‘cruel and unusual punishment.’ Several jurors as well as the victims’ family have expressed their opposition to the use of the death penalty in this case and have asked that his sentence to be commuted to life without parole.

Hill was granted a stay today, not on those grounds, but on the grounds that the secrecy surrounding Georgia’s lethal injection drugs violates Hill’s constitutional rights. Georgia’s new “Lethal Injection Secrecy Act” shields from the courts and the tax-paying public how Georgia has managed to obtain its lethal injection drugs. This prevents Hill from know whether or not the drugs to be used will be effective or whether they will cause serious pain and suffering in violation of the Constitution.

Late afternoon on July 3 when the least possible number of people would be paying attention, using a new law that makes the acquisition of execution drugs a state secret, Georgia scheduled the execution of Warren Hill, who is now set – barring intervention from the US Supreme Court or the Georgia Attorney General – to be put to death on July 15.

Warren Hill, who came within an hour of being executed by the state of Georgia in February, has filed a habeas petition at the US Supreme Court. It was the Supreme Court that banned execution of those with “mental retardation” in 2002, although it was left to the states to decide how to determine a defendant’s intellectual disability.

As you may recall from previous posts, Warren Hill was found to be “mentally retarded” by a “preponderance of the evidence” by a Georgia state judge. This finding would have exempted him from execution in other states. But Georgia, and only Georgia, requires proof of “mental retardation” to be “beyond a reasonable doubt.”

Earlier this year, the three mental health experts who had originally testified for the state – thereby creating “reasonable doubt” about Hill’s “mental retardation” claim – took a second, deeper look, and they now agree that Hill is in fact disabled to the extent that it would be unconstitutional to execute him. So now that all 7 experts who have examined him are of the unanimous opinion that Hill is “mentally retarded,” his lawyers have gone back to court to establish that the “beyond a reasonable doubt” threshold has been reached.

Kharey Wise was wrongfully convicted of beating and raping a female jogger in Central Park in 1989 and spent 15 years in prison. He was released when the real assailant confessed to the crime (Photo Credit: Debbie Egan-Chin/NY Daily News Archive via Getty Images).

For many who remember the terrible crime, the huge outcry and the media circus around the 1989 “Central Park Jogger” case, which was BIG national news, it may have come as a surprise to learn that all 5 of the teenagers convicted were in fact innocent.

But it probably shouldn’t have.

The film The Central Park Five, recently premiered on PBS, offers an important cautionary tale about how a rush to judgment, fueled by all-in media coverage of a particularly heinous crime, increases the chances that criminal justice officials will make critical mistakes, or engage in deliberate misconduct. The Reggie Clemons case, tainted by allegations of police abuse during the investigation and prosecutorial misconduct during the trial, is a reminder that a process compromised in this way can result in a death sentence.

At the other end of the spectrum, a rush to judgment can occur when there is a callous indifference on the part of authorities toward a crime they may perceive as less important because it was committed in a marginalized community. That’s what seems to have happened in the Carlos De Luna case, where an almost certainly innocent man was put to death for a crime another man named Carlos probably committed.

Less than half an hour before he was to be put to death, and after he had taken a sedative to prepare for his execution, Warren Hill was granted two simultaneous stays of execution – by a state court on a challenge to the method of his execution, and by the federal 11th circuit court of appeals on the substantive issue of his “mental retardation.”

Warren Hill has an IQ of 70 and has been declared by a state judge to be “mentally retarded” by a preponderance of the evidence. In other states, that would mean his execution would be an unconstitutionally cruel and unusual punishment. But not in Georgia, where a prisoner must prove his “mental retardation” beyond a reasonable doubt, a virtual impossibility given the inexact science of measuring mental disability.

Add to this the fact that the victim’s family and several of the jurors from his trial now oppose his execution, and one wonders: why is the state of Georgia – which is seeking to lift the stays – trying so hard to kill Warren Hill? Who is this execution for?

Georgia is set to carry out an unconstitutional execution while the prisoner’s case is still pending at the US Supreme Court. The high court, as a guardian of the rule of law in this country, must not let this happen. They must stay the execution.

Warren Hill

In 2002, the US Supreme Court banned execution of prisoners with “mental retardation” as unconstitutionally cruel and unusual punishment. Warren Hill, with an IQ of 70, was ruled by a judge to be “mentally retarded” by a preponderance of the evidence. But in Georgia, as in no other state, prisoners must prove their “mental retardation” beyond a reasonable doubt. Defining and measuring “mental retardation” is not an exact science – even IQ scores can vary based on the type of test given – so proving it beyond a reasonable doubt is virtually impossible.

By using this unreasonable “reasonable doubt” standard, Georgia has found a way to evade the spirit of the Supreme Court’s important 2002 decision, and to continue killing intellectually disabled prisoners.

Georgia will not be able to execute Warren Hill on Monday. He has been granted a temporary stay so the state of Georgia can sort out whether the sudden switch to a one-drug lethal injection protocol last week violated state laws guaranteeing public input on important administrative procedures (like killing people).

This is good news, in that Hill will not immediately be put to death, but there is no question that Georgia fully intends to execute a man with an IQ of 70 whom state judges have declared to be “mentally retarded” by all legal standards except the “beyond a reasonable doubt” bar used only by Georgia.

That the stay was granted on the lethal injection question allows the state of Georgia to evade further scrutiny of the way it handles capital punishment for the mentally disabled. For now, the Supreme Court, which banned executions of those with intellectual disabilities ten years ago, will not be reviewing Warren Hill’s case or the unique Georgia law upon which the state bases its right to kill him.

Clemency was denied for Warren Hill despite his diagnosis of mental retardation.

The Georgia State Board of Pardons and Paroles has disgraced itself, and the state it represents … again. The Georgia Board exists, like all executive clemency institutions, to inject a bit of mercy and humanity into the cold, clinical processes of our justice system.

The Supreme Court ruled the execution of persons with “mental retardation” unconstitutional in 2002. Shortly thereafter, a Georgia judge found Mr. Hill to be “mentally retarded” by a “preponderance of the evidence”. But Georgia, alone among the 33 death penalty states, requires proof of “mental retardation” to be “beyond a reasonable doubt”, the most difficult legal standard to reach. So the courts couldn’t stop an execution that would not go forward in any other state and, more likely than not, would be unconstitutional.